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R v Abednego

R v Abednego

Case [2004] QCA 377 12 October 2004

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Abednego [2004] QCA 377

PARTIES:

R
v
ABEDNEGO, David Frank
(applicant)

FILE NO/S:

CA No 248 of 2004
DC No 1174 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2004

JUDGES:

Williams JA, Jones and Chesterman JJ
Separate reasons for judgment of each member of the Court, Williams JA and Jones J concurring as to the orders made, Chesterman J dissenting in part

ORDERS:

1.   Grant leave to appeal against sentence

2.   Allow the appeal

3.   Set aside the sentence below and order that the applicant be sentenced to six months imprisonment to be suspended after he has served three months of that term with an operational period of twelve months

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – OFFENCES AGAINST THE PERSON – where applicant pleaded guilty to assault occasioning bodily harm whilst armed and in company – where applicant sentenced to two years imprisonment suspended after six months with operational period of four years – whether sentence is manifestly excessive – whether sentence fell outside range of sentences given by other judgments of court – whether the consideration of deterrence should give rise to a custodial sentence

R v Conochie; ex parte A-G (Qld) [1999] QCA 199; CA No 107 of 1999, 28 May 1999, cited

R v Dempsey and Perks; ex parte A-G [1999] QCA 520; CA Nos 328 and 329 of 1999, 17 December 1999, cited
R v Denham; ex parte A-G (Qld) [2003] QCA 74; CA No 376 of 2002, 28 February 2003, cited
R v Haughton [1997] QCA 281; CA No 219 of 1997, 6 August 1997, considered
R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of 1998, 7 August 1998, considered
R v Irving [2004] QCA 305, CA No 246 of 2004, 20 August 2004, considered

R v Van Ling [2003] QCA 382, CA No 109 of 2003, 5 September 2003, considered

COUNSEL:

K M McGinness for the applicant
M R Byrne for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

WILLIAMS JA: The background facts to this application for leave to appeal against sentence are set out in the reasons for judgment of Jones J which I have had the advantage of reading.

Immediately prior to the events in question it could be said that the applicant was a young man, aged 20, with no previous criminal history, and a good employment record. His involvement in the events leading up to the commission of the serious offence of assault occasioning bodily harm whilst armed and in company are set out in the reasons for judgment of Jones J. What, in my opinion, makes the offence serious,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abednego

Details

AGLC: R v Abednego [2004] QCA 377
Case: [2004] QCA 377
Decision Date: 12 October 2004

CaseChat Overview and Summary

In the case of R v Abednego, the applicant, Abednego, appealed against the sentence imposed upon him by the lower court. Abednego had pleaded guilty to assault occasioning bodily harm while armed and in company. The trial judge sentenced him to two years imprisonment, suspended after six months, with an operational period of four years. The applicant sought to have the sentence reduced, arguing that it was manifestly excessive and fell outside the range of sentences given by other judgments of the trial judge.

The legal issues before the court were whether the sentence imposed was manifestly excessive, whether it fell outside the range of sentences given by the trial judge in other judgments, and whether the consideration of deterrence warranted a custodial sentence. Abednego submitted that the sentence was manifestly excessive given the circumstances of the case and the fact that he had pleaded guilty and expressed remorse. He also argued that the sentence was disproportionate to the sentence imposed by the trial judge in other cases of a similar nature.

The court found that the sentence imposed by the trial judge was manifestly excessive. It was observed that the operational period of four years was unusually long, and the sentence did not reflect the nature and circumstances of the offence or the applicant's early guilty plea and remorse. The court also noted that the sentence was disproportionate to the sentences imposed by the trial judge in other cases of a similar nature. The court held that the consideration of deterrence did not warrant a custodial sentence in this case, given the applicant's early guilty plea and remorse. The appeal was allowed, and the sentence was set aside and replaced with a sentence of six months imprisonment, suspended after the applicant had served three months of that term, with an operational period of twelve months.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow the appeal

3. Set aside the sentence below and order that the applicant be sentenced to six months imprisonment to be suspended after he has served three months of that term with an operational period of twelve months

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Abednego [2004] QCA 377

Most Recent Citation

R v Middleton and Johns [2006] QCA 92

Cases citing this decision · 10 of 10 shown

R v Bates
[2021] QCA 229 Para 6

…R v Love [2007] QCA 319 at [17]; R v Middleton; R v Johns (2006) 165 A Crim R 1; [2006] QCA 92 at [40]; R v Abednego [2004] QCA 377; R v Summers [2015] QCA 278 at [38].…
R v Kelley
[2018] QCA 18 Para 12

…2008] QCA 272 at [20]; R v Lude; R v Love [2007] QCA 319 at [17]; R v Middleton; R v Johns (2006) 165 A Crim R 1; [2006] QCA 92 at [40]; R v Abednego [2004] QCA 377; R v Summers [2015] QCA 278 at [38].…
Quartermass v The Commissioner of Police
[2015] QDC 169

…s, R v Law [2006] QCA 560; R v O’Grady ex parte Attorney-General Queensland [2003] QCA 137; R v Middleton and Johns [2006] QCA 92; and R v Abednego [2004] QCA 377. I’ve taken into account what the court said in Lude and Love about those decisions. In R v Middleton and Johns , Jerrard JA, in a passage cited with a…
R v Carter
[2014] QCA 120 Para 1

…cted. The respondent relied on R v Beer: R v Massey [28] and submitted that the other cases relied on by the applicant were not comparable. [26][2004] QCA 377. [27][2009] QCA 12. [28][2002] QCA 397.…
R v Stone
[2010] QCA 157 Para 1

…o R v Abednego ,[9] R v McDonald [10] and R v Fortnum & Fortnum .[11] [5][2006] QCA 560. [6][2007] QCA 319. [7][2006] QCA 92. [8][1999] QCA 520. [9][2004] QCA 377. [10][2005] QCA 383. [11][2006] QCA 147.…
R v. Lude; R v Love
[2007] QCA 319 Para 1

…Both the applicants and the respondent referred to R v Middleton and Johns [2006] QCA 92 and R v Abednego [2004] QCA 377. In Abednego the applicant was 20, with no previous criminal history and a good employment record. He had armed himself with a part of a steering wheel lock for protection on going to the compl…
R v Jurd
[2007] QCA 228

…unt the sentence for the applicant's cooperation in naming his co-offender – whether sentence manifestly excessive R v Abednego [2004] QCA 377, cited R v Bowe; R v Taylor [2004] QCA 414, cited R v Bower-Miles & Smith [1995] QCA 453, cited R v. Blenkinsop ; R v Blenkinsop [2007] QCA 181, cited R v Gompelman [2002]…
R v Cockfield
[2006] QCA 276 Para 1

…and R v Abednego .[5] [3][2002] QCA 262; CA No 155 of 2002, 25 July 2002. [4][1995] QCA 453; CA No 278 and CA No 279 of 1995, 14 September 1995. [5][2004] QCA 377; CA No 248 of 2004, 12 October 2004.…
R v Fortnum and Fortnum
[2006] QCA 147 Para 1

…ddleton and Johns . It suffices to say that the comparison does not show that these sentences were manifestly excessive. For example, in R v Abednego [2004] QCA 377 that applicant was 20 years old at the time he assaulted another, causing bodily harm whilst armed and in company. He too had no prior criminal histo…
R v Middleton and Johns
[2006] QCA 92 Para 1

…The Crown referred this Court to its earlier decisions in R v Irving [2004] QCA 305 and R v Abednego [2004] QCA 377. In Irving that 19 year old applicant had pleaded guilty to a count of assault occasioning bodily harm, a count of wilful damage to property, and a count of common assault. He was sentenced to serve…

View all 10 citing cases →

Cases cited in this decision · 6 of 6 shown

R v Irving
[2004] QCA 305

…of 1997, 6 August 1997, considered R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of 1998, 7 August 1998, considered R v Irving [2004] QCA 305, CA No 246 of 2004, 20 August 2004, considered R v Van Ling [2003] QCA 382, CA No 109 of 2003, 5 September 2003, considered COUNSEL: K M McGinness for the applicant M R…
R v Van Ling
[2003] QCA 382 Para 1

…umstances were quite different to those now being considered but I have found no value in attempting to compare the penalties ultimately imposed. [16][2003] QCA 382…
R v Denham; ex parte A-G (Qld)
[2003] QCA 74 Para 1

…s sufficient to say that in each case there was no imposition of a penalty which required service of time in actual custody. [12][1999] QCA 520 [13][2003] QCA 74 [14][1999] QCA 199…
R v Dempsey and Perks; ex parte A-G
[1999] QCA 520 Para 1

…d the assault. It is sufficient to say that in each case there was no imposition of a penalty which required service of time in actual custody. [12][1999] QCA 520 [13][2003] QCA 74 [14][1999] QCA 199…
R v Hsu & Hsu
[1998] QCA 257 Para 1

…ty after four months. The conduct of each of these offenders would seem to be significantly worse than the conduct in the subject appeal. [11][1998] QCA 257…
R v Haughton
[1997] QCA 281 Para 1

…e and persisted after the wife had left the scene. The circumstances appear to me to have been more serious than those in the subject appeal. [10][1997] QCA 281…

Legislation cited in this decision · 0

No legislation cited in this case.

CITATION:	R v Abednego [2004] QCA 377
PARTIES:	R v ABEDNEGO, David Frank (applicant)
FILE NO/S:	CA No 248 of 2004 DC No 1174 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 October 2004
JUDGES:	Williams JA, Jones and Chesterman JJ Separate reasons for judgment of each member of the Court, Williams JA and Jones J concurring as to the orders made, Chesterman J dissenting in part
ORDERS:	1. Grant leave to appeal against sentence 2. Allow the appeal 3. Set aside the sentence below and order that the applicant be sentenced to six months imprisonment to be suspended after he has served three months of that term with an operational period of twelve months
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – OFFENCES AGAINST THE PERSON – where applicant pleaded guilty to assault occasioning bodily harm whilst armed and in company – where applicant sentenced to two years imprisonment suspended after six months with operational period of four years – whether sentence is manifestly excessive – whether sentence fell outside range of sentences given by other judgments of court – whether the consideration of deterrence should give rise to a custodial sentence R v Conochie; ex parte A-G (Qld) [1999] QCA 199; CA No 107 of 1999, 28 May 1999, cited R v Dempsey and Perks; ex parte A-G [1999] QCA 520; CA Nos 328 and 329 of 1999, 17 December 1999, cited R v Denham; ex parte A-G (Qld) [2003] QCA 74; CA No 376 of 2002, 28 February 2003, cited R v Haughton [1997] QCA 281; CA No 219 of 1997, 6 August 1997, considered R v Hsu & Hsu [1998] QCA 257; CA Nos 199 and 200 of 1998, 7 August 1998, considered R v Irving [2004] QCA 305, CA No 246 of 2004, 20 August 2004, considered R v Van Ling [2003] QCA 382, CA No 109 of 2003, 5 September 2003, considered
COUNSEL:	K M McGinness for the applicant M R Byrne for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent